ACSBlog: The Blog of the American Constitution Society

by Victoria Ni, a staff attorney with Public Justice

[Editor’s note: Additional resources on the Second Amendment are available from ACS]

The view that the Second Amendment protects an individual right to possess and carry weapons — under some circumstances — has become the law of the land. When the smoke cleared in D.C. v. Heller, five justices found that the Second Amendment meant, at a minimum, that “law-abiding, responsible citizens” have the right “to use arms in defense of hearth and home.”  

Despite all the controversy, Heller’s holding will only affect, on a practical level, a handful of laws in urban areas that completely outlaw guns. Justice Antonin Scalia’s majority opinion expressly endorsed most reasonable restrictions on gun possession and ownership. According to Scalia, the Second Amendment right is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” While Scalia carefully avoided defining the exact contours of the new right, his own words make clear that a number of restrictions would pass constitutional muster. 

First, only “law-abiding, responsible citizens” have rights under the Second Amendment. By way of example, the majority says: “Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . .” As Justice John Paul Stevens points out in dissent, while the First and Fourth Amendments protect rights of all “the people,” the Second Amendment’s “right of the people” is not so generous.

Second, location matters. The actual holding of Heller strikes down D.C.’s law only to the extent it restricted gun ownership and lawful use in one’s home. “[L]aws forbidding the carrying of firearms in sensitive places such as schools and government buildings” are legal, according to Scalia.  

Third, the Second Amendment’s protections extend only to certain types of weapons — “those typically possessed by law-abiding citizens for lawful purposes.” This limitation, says Scalia, is supported by the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” So laws restricting handguns which are “the most popular weapon chosen by Americans for self-defense in the home” could be suspect under the Constitution, but laws banning machine guns or short-barreled shotguns are not.  

Finally, the majority’s opinion allows for the regulation of gun sales, doesn’t touch the licensing requirements for gun owners in the D.C. law, and leaves plenty of room for other sensible measures. For example, prohibitions against carrying concealed weapons were given an approving nod by the majority. Also left untouched are common law causes of action that victims of gun violence have against gun manufacturers or gun dealers for defective products or negligence.  

As a result, products liability lawsuits like Ryan v. Koehler International, Inc. and Maxfield v. Bryco Arms against gun manufacturers are still viable. Those lawsuits sought to hold manufacturers accountable for life-threatening injuries to innocent children resulting from defective gun designs, like the lack of childproofing features.

More litigation challenging gun laws will surely follow. First up is whether the Second Amendment applies not only to the federal government, but also to state and local governments. For the most part, however, Heller’s ringing endorsement of “presumptively lawful regulatory measures” in the context of guns will allow us to move past the furor over the meaning of the Second Amendment and focus instead on what most of us can agree on: reasonable gun restrictions that preserve public safety and deter crime.